from the sure-you-don't-want-anything-else? dept

In the previous instalment of the long-running saga involving alleged pirates of the Dallas Buyers Club film in Australia, the court agreed that Australian ISP iiNet should hand over information about its customers. But it added an important proviso: the letter and telephone script to be used to contact and negotiate with them had to be approved by the court first in an effort to prevent "speculative invoicing" of the kind all-too familiar elsewhere.

Last week, more details emerged in another court hearing before the same judge. He was was concerned that the proposed letter from Dallas Buyers Club LLC (DBC) and Voltage Pictures LLC, the film's foreign sales agent -- which DBC is currently suing (pdf), in another twist in the plot -- would not quote a specific figure that those supposedly infringing would be asked to pay, as the Australian Financial Review reported:

Judge Nye Perram said he was concerned DBC was effectively being given a blank cheque, by not stipulating a dollar figure, which could allow the company to ask for a "very high number".

The judge also refused a request by DBC that the draft letter and telephone script should be withheld from the public -- DBC claimed that doing so "could weaken the company's bargaining position and reveal to alleged infringers how they could reduce the penalties sought." As a result, The Sydney Morning Herald obtained copies of both the letter and the script, and published some interesting details. For example, the letter expects parents to shop their own children:

"If the person whom you believe to have engaged in Piracy is under 18 years of age, then please provide us with the full name and address of that person, confirm that that person is under 18 years of age, confirm whether you are the parent or guardian of that person and whether you are authorised to engage with us on behalf of that person," the letter will demand.

The proposed telephone script for people who ring the number given in the initial letter is even more extraordinary:

Callers who admit to the downloads will be asked to provide detailed personal answers including their employment status, whether or not they have a terminal illness, what their annual income is and whether or not they're serving in the military.

It will also ask the callers to incriminate themselves further:

"How many titles do you have available now and in the past on the BitTorrent network?" call centre operators will ask, according to the script.

It's not yet clear whether the judge will allow these incredibly intrusive questions -- he's expected to hand down his ruling next month. But it's an indication of the approach that DBC wants to take, and yet another reason why those receiving these emails should consider seeking legal advice, as The Sydney Morning Herald notes in a useful article on the topic.

from the pay-attention-now dept

With all the talk about Prenda and its copyright trolling practices, it's long been clear that the real king of copyright trolling in the US is Malibu Media -- better known as xArt -- and its legal team led by Keith Lipscomb (and we'll leave aside the fact that behind the scenes, it appears to be using the same German "international men of mystery" that other copyright trolls, like Voltage Pictures have been using). Either way, Lipscomb's shakedown campaign accounts for an astounding percentage of copyright lawsuits filed in the US these days. And, given some of the stories that have come out in these lawsuits, it's kind of astounding that the company has not received the "Prenda treatment" from any federal judges.

That may be about to change. Federal district court judge Timothy Black appears to have had enough of Malibu Media and its copyright trolling practices. In two separate cases this week, Judge Black issued "orders to show cause" (more or less judicial language for "I think you've done something really bad and here's your last chance to show me otherwise) that go beyond the usual level of "Hey, it appears you've been acting naughty" to a full blown recitation of all of Malibu Media's questionable practices.

Both orders (first one and here's the second) ostensibly focus on a common problem with Malibu Media's lawsuits: the failure to actually serve the defendants (when your main focus is just on getting identifying info to shake down people with threats that get them to settle, actually following official procedure required for an actual lawsuit falls by the wayside). And Malibu Media/Lipscomb/flunkies are notorious at screwing this up. In this case, Judge Black had already issued multiple orders to show cause over the issue. You can read about all the missed deadlines in the full filing, but Judge Black sees the problems here.

The much delayed filing of the summons return simultaneously forced the Court to unnecessarily expend judicial resources in the issuance of an Order to Show Cause and hindered the ability of the Court to manage its docket. With respect to the filing of an answer or other matters dependent on the date of service of process, the Court’s ability to actively manage its docket is entirely dependent on counsel filing a summons return within a reasonable amount of time.

But that's just the preamble. From there, Judge Black makes it clear he's well read up on all of Malibu Media's infamous shenanigans in gaming the judicial system for profit.

The Court does not view Malibu Media’s conduct in this action in isolation. Rather, the Court views it as part of an unmistakable pattern that has emerged in other actions before this Court and in context of observations made by multiple other federal judges in cases involving Malibu Media.

This Court has observed the conduct of Malibu Media and its counsel of record in over 60 cases filed in this District in the past twelve months. This is not the first case in which Malibu Media has filed a summons return well after the date of service. Counsel appears to have made a misrepresentation in seeking an extension of time to complete service in two cases. The Court also issued an order to show cause after counsel publicly filed a defendant’s name in direct violation of two orders unambiguously ordering counsel to file that information under seal.

We wrote about that public filing a few months ago. But that's not all that the judge has been watching. He's also well aware of the notorious "Exhibit C," where Malibu Media would file an "exhibit" of other movies that it believed the defendant may also have downloaded illegally -- even though it was not the copyright holder on those films. The titles were often very embarrassing, suggesting that the entire purpose of Exhibit C was to embarrass someone into settling so the list would not be associated with their name in court documents.

Judge Black also calls out the "swarm joinder" issue that was popular in early lawsuits -- whereby copyright trolls like Malibu (and others) tried to lump hundreds or thousands of individuals together in a single lawsuit, arguing it was proper to "join" them all since they participated in the same infringement. As Black notes, that misuse of the court system really only set the stage for a bunch of other questionable practices. It seems clear that Judge Black is well aware of the game being played, and even refers to it as copyright trolling:

Malibu Media asserts that it is necessary to invoke the Court’s subpoena power to “propound discovery in advance of a Rule 26(f) conference.” .... However, not a single one of these 60 cases has ever progressed to a Rule 26(f) conference. In fact, most cases are voluntarily dismissed by Malibu Media pursuant to Rule 41(a)(1)(A)(i) without obtaining a summons, but presumably after Malibu Media has used the third-party subpoena to obtain a settlement. The name of the IP subscriber is never provided to the Court in these voluntarily dismissed cases. This makes it impossible for this Court or any other court to determine, for example, if a later action should be dismissed with prejudice under Rule 41(a)(1)(B). In the few cases in which a defendant has appeared with counsel, counsel have raised numerous allegations of impropriety and abusive litigation tactics. The Court is not blind to the reality that these allegations likely substantially underrepresent the amount of misconduct that goes unreported by defendants who simply pay Malibu Media’s settlement demand rather than face the prospect of expensive and extensive litigation regarding their purported interest in pornography.

The Court is aware that Malibu Media, through separate local counsel, has filed thousands of similar cases in federal courts across the country. A copyright troll has been defined as “an owner of a valid copyright who brings an infringement action not to be made whole, but rather as a primary or supplemental revenue stream.” .... Under this definition, Malibu Media certainly qualifies. However, Malibu Media generally responds to this allegation by pointing to comments of the trial judge in the so-called bellwether trial as unassailable proof that its intentions and tactics differ from other entities that bring copyright infringement actions related to pornographic movies.

Oh right. The Bellwether trial. That case had all sorts of problems, including a lying defendant who tried to destroy evidence. Unfortunately, it did not do what it was initially intended to do: actually test some of Malibu Media's really questionable legal arguments. Judge Black quickly notes that the "bellwether" trial doesn't matter. Malibu Media is up to some really questionable judicial gaming. He walks through all of the abuses, from misjoinder to Exhibit C -- and even notes that despite being benchslapped over Exhibit C, Malibu Media just "evolved this practice":

Notwithstanding Malibu Media’s contention that it “instructed counsel nationwide to never file Exhibit C with a complaint again,” ... this Court has borne witness to the fact that Malibu Media has simply evolved this practice rather than eradicate it. In an Order issued in a separate case on October 6, 2014, this Court sua sponte noted a continued vestige of Exhibit C in several paragraphs of Malibu Media’s complaint.... Instead of attaching Exhibit C, Malibu Media adapted its practice and now made an explicit reference to a document with “additional evidence” that the defendant had distributed a large number of third-party files through BitTorrent.... Malibu Media disingenuously offered to produce this document to the Court with the seemingly off-handed remark that “many of the titles to the third party works may also be relevant to proving Defendant is the infringer because they correlate to the Defendant’s hobbies, profession, or other interests.” ... Citing the two Wisconsin district court cases that imposed sanctions for attaching Exhibit C, the Court struck the offending paragraphs from the complaint and ordered Malibu Media to file a conforming amended complaint forthwith.... Two months later, Malibu Media voluntarily dismissed the action without filing an amended complaint.

In discussing what to do about this, Black notes that, ordinarily, it's wrong to just dismiss a case to discipline "an errant attorney" since that would be unfair to the parties the lawyer represents. However, he notes that in this case, it's different. The sheer number of cases and the fact that Malibu/Lipscomb's games continue suggest that this is not just a bad lawyer not fairly representing the interests of a client. Oh, and it's clear Black knows that this is all being run through Lipscomb, rather than the random lawyers who actually turn up for local cases:

Here, and in the dozens of other actions before the Court, there is ample evidence that Malibu Media or its “outside general counsel,” rather than its local counsel of record selects the litigation strategy and tactics.
12 Accordingly, the general principle that “directly sanctioning the delinquent lawyer rather than an innocent client” may not apply here....

Still, Judge Black is incredibly patient. Despite the earlier orders to show cause, he once again gives Malibu a chance to explain itself. Though in the second of the two orders, Judge Black also lays out the possibility of "Rule 11 sanctions" against the lawyers for flat out lying to the court and failing to correct the record on it -- though again (perhaps surprisingly) suggests that the conduct to date is not enough to get there.

Here, the record indicates that on February 10, 2015, Malibu Media’s counsel represented that service had not yet occurred. (Doc. 10 at 2). However, it is clear that Defendant was served on January 26, 2015. (Doc. 12). Counsel made no attempt to correct this statement until after the Court issued an Order to Show Cause regarding the apparent failure to complete service of process.

It may be frustrating to those who are watching these cases that even this is not enough to bring down Rule 11 sanctions, but Judge Black has made it clear that he's watching -- and you can bet that other judges across the country may start to take notice as well. And assuming Malibu Media can't resist continuing to push things even further, the record of misconduct will be that much longer and more detailed.

from the cox-blocked dept

Rightscorp (via two music publishers) has dragged Cox into court to test its novel (read: legally unsound) theory that complying with the DMCA means cutting off service to "repeat infringers." The theory itself is largely untested, but far from promising. But that isn't stopping BMG and Round Hill Music (with Rightscorp as a not-so-silent partner) from taking a flyer on a bad legal bet. Certainly, the theory would be advantageous to the shakedown efforts Rightscorp generously refers to as a "business model," but, so far, the only thing being offered as "evidence" of repeat infringement is Rightscorp's own declarations.

Those declarations are highly suspect. Cox has filed an opposition to Rightscorp's Motion to Compel that highlights the anti-piracy company's extortion-esque tactics.

“Rightscorp is in the business of threatening Internet users on behalf of copyright owners. Rightscorp specifically threatens subscribers of ISPs with loss of their Internet service — a punishment that is not within Rightscorp’s control — unless the subscribers pay a settlement demand,” Cox writes (pdf).

Cox has refused to participate in Rightscorp's quasi-legal activities. While the company is not opposed to passing on infringement allegations, it did ask Rightscorp to remove the threatening language (cutting off service, $150,000 per infringement claim) first. Rightscorp refused to do so. This impasse is obviously unacceptable to Rightscorp, which depends on the (very) occasional settlement payment to keep its business barely afloat.

As Cox points out, Rightscorp has decided the best course of action is to maintain its unsteady perch on the edge of legality. In the filing, Cox alleges that Rightscorp tried to make the ISP a "business partner" in its shakedown attempts.

“Rightscorp had a history of interactions with Cox in which Rightscorp offered Cox a share of the settlement revenue stream in return for Cox’s cooperation in transmitting extortionate letters to Cox’s customers. Cox rebuffed Rightscorp’s approach,” Cox informs the court.

But that's not the only legally-dubious tactic the "cutting edge" anti-piracy firm has deployed. It's also attempting to use this lawsuit's discovery process to sidestep subpoena limitations.

The motion lays bare one of Plaintiffs’ primary reasons for bringing this lawsuit. Plaintiffs seek to circumvent the Cable Privacy Act process and instead use discovery in this case to force Cox to reveal, en masse, PII for possibly tens of thousands of Internet subscribers who Plaintiffs speculate might be violating their copyrights. The Cable Privacy Act expressly prohibits Cox from disclosing its subscribers’ PII, for good reason: Internet subscribers have a compelling privacy interest in the confidentiality of their personal information, which can of course be vulnerable to exploitation for myriad improper purposes. If a copyright holder earnestly believes that an unnamed Internet subscriber is infringing upon its copyrights, the proper course is to bring a “John Doe” lawsuit against the subscriber and then to use third-party subpoena power to obtain identifying information from the user’s Internet Service Provider. That legitimate procedure allows notice to the subscriber and an opportunity for the subscriber to act to protect his or her rights. It also relieves the ISP of the unfair responsibility of adjudicating which of the two competing interests (the subscriber’s or the accuser’s) should trump the other.

[...]

Plaintiffs nominally (Rightscorp in reality) claim to have identified “approximately 150,000” infringers, including several hundred “egregious infringers,” among Cox’s subscribers. But Plaintiffs apparently have only IP addresses to go on. (Doc. 72, Corrected Br. at 3.) Plaintiffs have not filed any “John Doe” lawsuits against Cox customers and have not sought information from Cox by subpoena. More importantly, Plaintiffs do not seek, and have not sought, leave to add “John Doe” defendants in this case.

[...]

The practical dynamics of this motion are suspect: If there are 150,000 infringers among Cox subscribers, as Plaintiffs claim, why would they limit themselves (at least for now) to just 500 “egregious infringers”? Will Plaintiffs seek to depose or serve Rule 45 subpoenas on those 500? Will Plaintiffs now seek to add those 500 as co-defendants? Why do Plaintiffs want a blank-check “open order” to continually demand that Cox reveal more identities at later stages in this action? When tested in practical terms, Plaintiffs’ motion makes no sense, and their arguments plainly are an obvious pretext for some other motive.

"Pretext for some other motive" basically describes the entirety of Rightscorp's business model. It subpoenas ISPs for subscriber info, under the unspoken pretext that further legal action is in the offing. But instead of suing file sharers, the company instead uses the information to harass subscribers into paying "settlements" for alleged infringement.

Despite the damning claims made by Cox, the court has partially granted the questionable Motion to Compel. The ISP has been ordered to turn over the "Top 250 IP Addresses recorded to have infringed in the six months prior to filing the Complaint." This distinction is important, because as Cox points out in its opposing motion, the plaintiffs' constantly-widening net had managed to drag in alleged infringers whose infringement didn't occur until after the lawsuit was filed.

Plaintiffs’ stated justifications for their extraordinary request do not help Plaintiffs’ cause. Plaintiffs acknowledge that they “must establish direct infringement of the copyrighted works asserted in this case,” and imply that their motion serves that end. (Doc. 72, Corrected Br. at 4.) But that implication is illogical because Plaintiffs seek PII for 500 subscribers of the 150,000 supposedly implicated here. Surely Plaintiffs are not prepared to concede that their claims fail for the works that the other 149,500 subscribers allegedly infringed. Notably, of the 500 allegedly “egregious infringers” the Plaintiffs hand-picked, 250 allegedly infringed after this lawsuit was filed. (Doc. 72, Corrected Br. at 4.) Those subscribers’ alleged infringements, therefore, cannot have formed a basis for Plaintiffs’ claims in this suit. And nowhere do Plaintiffs even assert that Rightscorp sent purported DMCA notices to Cox with respect to those particular subscribers.

Cox has come out swinging in the early going, and its assertions confirm much of what has been written about Rightscorp and its tactics. This aggressive stance should help uncover plenty of damning details, none of which should have a positive effect on Rightscorp's shriveling stock price.

from the could-Section-230-free-him? dept

As was noted here in early February, a California court found revenge porn site owner Kevin Bollaert guilty of six counts of extortion, along with 21 counts of identity fraud. Bollaert not only ran revenge porn site YouGotPosted but also operated ChangeMyReputation, from which he would remove photos posted to his revenge porn site for a fee.

Bollaert had $20,000 in cash on him when arrested, apparently from his ChangeMyReputation sideline.

Bollaert apparently believed Obama would pass restrictive gun laws that would make certain firearms extra valuable, and began stockpiling weapons. But buying 31 guns using only a P.O. Box for an address has a way of attracting ATF agents…and a conviction for making false statements in connection with the purchase of a firearm.

During sentencing, Bollaert's attorneys mentioned the FTC's wristslap of Craig Brittain as an argument that Bollaert deserved a similarly light punishment.

The judge quoted an interview with Bollaert where he blew off Marc Randazza's lawsuits.

Kevin Bollaert was sentenced by a San Diego court to 18 years in prison following his February conviction on twenty-seven counts of extortion and identity theft.

This was much harsher than most people expected, even considering the heinousness of Bollaert's actions. Some expected a lighter sentence coupled with an extended probation period, and Steinbaugh's tweets mention a previous plea deal that was rescinded or rejected. None of that matters now. As Steinbaugh points out, if Bollaert serves every year of his term, he'll be in jail longer than some of his site's victims were alive when their pictures were posted.

The sentence will most likely be appealed. Steinbaugh advances the theory that Section 230 protections could be used to undo the extortion and identity theft charges. (Although he is careful to preface his legal speculations with this warning: "It’s rather boring — and I’m probably wrong, but someone has to raise these issues, even in defense of a revenge porn site extortionist. Only Nixon could go to China, I suppose.")

If Bollaert does appeal, he has a good chance at success with respect to the identity theft charges (assuming Bollaert himself didn’t seek out the victims’ personal information). Simply publishing content submitted by users — even if the avowed purpose of the site was to promote invasion of privacy and tortuous conduct — is immunized by §230.

Whether or not the Section 230 argument will work against criminal extortion charges remains to be seen, but previous civil cases seem to present a few possibilities.

The courts which have addressed extortionate behavior in the civil context have indicated that §230 likely immunizes that conduct. §230 applies to website operators even when they exercise traditional editorial functions.

In Ascentive, LLC v. Opinion Corp., a federal district court in New York addressed consumer gripe site PissedConsumer.com’s “Corporate Advocacy Program”, a “premium reputation management service” under which PissedConsumer would remove negative reviews (if the consumer refused to allow PissedConsumer to act as an intermediary in resolving their complaint) and resolve new complaints before they are posted. The plaintiffs brought RICO claims against PissedConsumer, including predicate acts of “commercial bribery or extortion.” The district court, in denying the plaintiffs’ motion for a preliminary injunction, ruled that the plaintiffs had not demonstrated a likelihood of success on the extortion allegations.

As ugly as it seems, the protections afforded operators of sites hosting user-generated content could keep Bollaert from being incarcerated -- or at least take a huge chunk out of his 18-year sentence. But that's the dual edge of these sorts of protections. Much like the First Amendment protects ignorant, hate-filled racists and the Fourth Amendment protects child porn enthusiasts, Section 230 can protect revenge porn site owners from the content submitted to their sites.

Bollaert's sideline removal service complicates things, but despite profiting from both ends of the equation, the content was posted by others and his extortion-esque secondary business never asked for money to prevent the posting of submitted content, but rather the removal of already-posted photos and contact info. Pure, vile nastiness to be sure, but with enough legal loopholes to potentially jeopardize his conviction.

Additionally, Section 230 protections have previously only served to defend site owners in civil cases, rather than against criminal charges. It's highly unlikely this will be applicable to appealing the criminal charges, but these are state charges rather than federal charges, so this may provide him an opportunity to test California's statutory interpretation of Section 230.

If his conviction is overturned (Steinbaugh believes the state will do everything possible to prevent this) using Section 230 as leverage, we can expect more legislative attempts to gut these protections -- from lawmakers who are content ignore the harm it will cause site owners far more respectable than those trafficking in misery and exploitation simply because the targeted activity is so repulsive.

from the Omnishambles:-est.-2013 dept

Rightscorp -- another company with designs on revolutionizing the pursuit of infringers -- has a murky past, a verytroubled present, and almost no future. For the second time in three months, it's facing a lawsuit over its shakedown tactics. Rightscorp tries to present itself as the good guy of the anti-piracy world, "allowing" alleged infringers to buy their way back into the company's good graces for the low, low price of $20 per accusation. It seems like quite a bargain when coupled with the company's Standard Threat Letter, which never fails to mention the $150,000 statutory limit when addressing potential shakedown victims.

So far, its efforts have met with limited success. (Putting it kindly.) Its stock price -- which occasionally threatened to top the gilded $1/share limit now hovers at around $0.09/share.

Its perky press releases can't hide the fact that a trickling revenue stream backed by shady tactics is never going to make millionaires of its shareholders.

The lawsuit filed last November accuses Rightscorp of violating damn near everything under the sun in its quest to spin alleged infringers into gold.

The complaint seeks class damages against Rightscorp for violations of the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, California’s Rosenthal Act, and Abuse of Process. The complaint alleges unlawful robo-calls, as well as other unfair debt collection practices, and that Rightscorp has abused the legal process by issuing DMCA Section 512(h) subpoenas that it knew were objectively baseless.

First, in the rundown of the events leading to this class action lawsuit, attorney Sergei Lemberg points to the fact that Rightscorp's questionable tactics can be traced back to information obtained with an equally questionable subpoena. (Internal citations omitted.)

The legality of Rightscorp’s subpoenas is highly questionable. Under 17 U.S.C. § 512(h), a subpoena may not be issued to an ISP which does not store information on its system but rather acts as a mere “conduit” for electronic communications. Rightscorp willfully disregards this requirement, issuing such subpoenas to conduit ISPs and storage ISPs alike. In In re Subpoena Issued to Grande Commc’ns Networks LLC, 1:14-mc-00848, Doc. No. 1 (W.D. Tex. Sept. 5, 2014), the plaintiffs moved to quash a subpoena issued by Rightscorp to its internet service provider. Rather than defend its subpoena’s legality, Rightscorp packed up its bags and withdrew its subpoena the very next day. The case was dismissed in result.

From there, the filing moves on to what Rightscorp did with its questionably-obtained subscriber data, including the deployment of unsolicited phone calls, text messages and threatening emails. Here's one email one plaintiff received.

Dear Melissa Brown,

Attached is the evidence of 26 copyright infringements that have occurred as a direct result of a file sharing program operating under your internet connection: [REDACTED]. I have also included all 26 e-mail notifications that were automatically sent to your internet service provider regarding federal law being broken under their services. Any further questions or concerns you may contact my direct line at (310) 405- 0102. I do ask that you refrain from derogatory language when speaking with a DMCA Agents, as the transactions are kept on file.

That point isn't mentioned in the lawsuit, but plenty of other violations are. The complaint notes that Rightcorp also sent unsolicited text messages to the plaintiff's phone as well as used a robodialer to make repeated calls. Considering the only loophole for unsolicited communications under the Telephone Consumer Protection Act pertains to "emergency purposes," it would appear that its use of both (text messages are considered "calls" by the FCC) run afoul of federal law.

Despite being told to cease its calls, emails and text messages, Rightscorp persisted. Now, it's being accused of "wilfully violating" the TCPA in its pursuit of the two plaintiffs.

While debt collectors are allowed to call debtors to pursue collections, they have to adhere to many rules, including how many calls may be placed a day and between what hours. Unless consent is obtained, they cannot send text messages or use other forms of communications (like email).

Rightscorp isn't a debt collector, although I'm sure it feels its business model is closely related. In reality, Rightscorp's business is more closely aligned with telemarketers, which any person can opt out of receiving calls from in perpetuity. (Telemarketers are also not allowed to send unsolicited text messages.) Rightscorp is, in essence, selling $20 settlements to any alleged infringer it can obtain contact data for. Its "offers" are backed by no legal authority. It would take an actual lawsuit to pursue infringement allegations and that has never been part of Rightscorp's plans.

If it chose to handle its business honestly (by suing alleged infringers), it would have no need to harass the accused via phone calls, emails and text messages. (It would, in fact, have several reasons not to contact potential defendants.) But since suing doesn't figure into the revenue stream, Rightscorp is reduced to pitching tiny "settlements" (in quotes because settling doesn't prevent an infringer from being sued by the rightsholders themselves) to the gullible or easily-intimidated.

Hopefully, this lawsuit (and its previous one) will take the last few pennies out of its falling stock price and force it to return to whatever it was that it was doing when it was d/b/a Stevia Agritech Corp. or Kids Only Market Inc. There are much better ways to pursue alleged infringers (like: not at all!) than abusing or skirting every law on the books that relates to the chosen "business model." At this point, Rightscorp's tactics appear to be every bit as toxic as its stock price.

from the another-one-rung-up dept

So, last week, the FTC came down on revenge porn's Craig Brittain, and this week another big revenge porn/extortionist Kevin Bollaert was found guilty by a jury for his revenge porn site, YouGotPosted.com. As we wrote when he got arrested, the claims against him that made sense were the extortion claims, and he was found guilty on six extortion counts, along with 20 counts for identity fraud. No verdict was reached on charges of conspiracy.

As with Brittain's "David Blade III" and his "TakedownLawyer/Takedownhammer" website, Bollaert's YouGotPosted directed people to a website called ChangeMyReputation, where they could pay $300 to $350 to get their photos taken down off the site. That's where the extortion charges come in. It's good to see these guys go down for what they did, but some of the specifics do matter. It's unclear from the posted reports so far what the specific charges he was found guilty for cover, and whether or not some of them were the ones we pointed out initially that could be seen as problematic. It's also quite possible that Bollaert will appeal -- at which point the specifics will become a lot more important. It does seem likely that some of what he did was very much criminal extortion, as the jury found, but one hopes that the nature of what he was doing and the type of site didn't cloud the issue, such that he was also blamed for protected activity or activity by users in addition to his own activities. It's easy to want to see someone like Bollaert be taken down on criminal charges -- but we should worry about precedents that may later apply to other site operators who aren't running revenge porn sites.

Digiges pointed out that in Germany, IPRED [the EU's Intellectual Property Enforcement Directive] had led to a situation which allowed rightsholders to acquire personal data of the users directly from the providers. All they needed for that was the IP-address of an alleged infringer and an application to a court that would order the provider to hand over the requested information. While this option was originally meant to facilitate the realisation of damages and injunctive relief, the whole process in fact became more and more automated over time. The requests from rightsholders usually comprised between 15 and 3 500 IP-addresses at a time. In one single case in October 2009, the number even reached a breathtaking 11 000. Given the fact that the court proceedings in these cases are always summary or expedited ones, it becomes clear that there is hardly any chance for a judge to thoroughly check the validity and accuracy of the "evidence" presented by the rightsholder.

In its letter, Digiges argued that the situation created by the German implementation of IPRED violates EU law, and asked the European Commission to do something about it. It did: in October 2013, it invited representatives to Brussels to explain their case further. After further correspondence with Digiges, more than one and a half years after the initial letter was sent, the Commission has finally decided to take the first step towards an infringement procedure against Germany:

The Commission officially prompted the German government to comment on the German situation around warning letters within ten weeks.

Heady stuff. EDRi points out that any practical effect of the Commission taking up this case is likely to be very slow to arrive:

The German government is expected to delay their answer to the Commission as long as possible. Once it has arrived, the Commission will have 10 weeks to evaluate the government’s reply. An ensuing judicial infringement procedure might take up to two years and will be repeated if the member state in question fails to comply with the ruling of the court.

So, realistically, we are looking at over four years before Germany actually has to do anything serious like changing its law here. But EDRi tries to look on the bright side, concluding its post as follows:

it is still unclear if and when Germany will change its laws facilitating the abuse of warning letters. But an important step towards the first infringement procedure with a net-political twist has been taken.

from the fighting-back dept

Last year, there were a few stories concerning a really despicable (more than usual) patent troll called MPHJ Holdings. Joe Mullin, over at Ars Technica, had dug deep into the details, finding a bunch of shell companies all sending demand letters to various small companies demanding around $1,000 per employee for using a network-connected scanner that includes a "scan to email" feature (i.e., pretty much any scanner on the market today). There were all sorts of sketchy things about MPHJ, and it was pretty clear that it and all its shell companies were effectively shaking down small businesses. It was so egregious that Vermont's Attorney General sued the company, claiming that it was engaged in "unfair and deceptive acts" with its threat letters.

Over the last year, MPHJ has fought hard to get the case out of a Vermont state court and into a federal court, arguing that it was a patent case (which is covered by federal law). The federal district court sent it back to the Vermont state court, saying that it's not really a patent case at all, but about the company's threat letters. Specifically, it stated:

"the State is targeting bad faith conduct irrespective of whether the letter recipients were patent infringers."

MPHJ appealed this ruling to CAFC, the appeals court that handles all patent cases (and is somewhat notorious for constantly expanding patent law through its decisions). Last week, however, CAFC rejected MPHJ's appeal, without even getting into the issue of whether or not this is a patent case. Instead, it simply noted that the law says appeals courts can't review orders remanding a case to a state court. Case closed, no jurisdiction. Pack your bags for Vermont, MPHJ lawyers.

Of course, the more important case involving MPHJ is the one in which it brazenly decided to sue the FTC for investigating its actions. The decision on that case could come at any time. You never can tell how a court will rule, but the odds are not likely to be in MPHJ's favor on that one either...

from the sold-out-by-his-own-dash-cam dept

Even when law enforcement officers know a camera is watching, some still choose to abuse their power. This isn't good news, especially as more law enforcement agencies are choosing to outfit their officers with cameras and mics (and allowing those officers to tamper, disable or break the equipment without consequence). The technology does have the potential to nudge both cops and citizens into more mutually respectful interactions, but this is being circumvented by officers who like cameras aimed at the public, but not so much at themselves.

One deputy in particular is being singled out for his practice of pressuring travelers to abandon their money or face losing their cars as well. The I-Team has obtained exclusive dash-cam video from one of these drug interdiction stops. While no drugs were found, that didn't stop the deputy from grabbing the cash.

"How much money you got?" Humboldt County Deputy Lee Dove can be heard asking on the video.

The dash-cam video gives insight into what some say is a pattern of questionable drug interdiction stops by Deputy Dove along I-80 near Winnemucca in northern Nevada.

The out-of-state motorist was stopped for doing 78 mph in an 75 mph zone. Deputy Dove finds $50,000 cash and $10,000 in cashiers checks during a search of the car.

The driver, Tan Nguyen, maintained that he won the money in Las Vegas. Whether or not he did was something the deputy could have made an effort to ascertain, but instead he chose to go down the extortion route.

Deputy Dove: "Well, I'm gonna search that vehicle first, ok?"

Nguyen: "Hey, what's the reason you're searching my car?"

Deputy Dove: "Because I'm talking to you ... well, no, I don't have to explain that to you. I'm not going to explain that to you, but I am gonna put my drug dog on that (pointing to money). If my dog alerts, I'm seizing the money. You can try to get it back but you're not."

Nguyen: (inaudible) got it in Vegas."

Deputy Dove: "Good luck proving it. Good luck proving it. You'll burn it up in attorney fees before we give it back to you."

But Deputy Dove never put his drug dog to work (itself a very iffy practice that often relies on an officer claiming the dog "alerted" when it was, in fact, reacting to stimulus from the officer). Instead, he offered a very shady "deal." Nguyen was free to go if he turned over the cash. If not, Dove was going to seize the car and everything in it.

Dove has refused to speak about the incident, a decision at least partially guided by an ongoing investigation. The sheriff's department has admitted that proper procedures were not followed in a number of seizures, but that admission came after the fact. At the time of the seizure, the sheriff's office posted a photo of Dove with the cash, promoting the fact that the money would be used to help the sheriff's office fight crime. (This being crime located outside of the Sheriff's Department, apparently...)

Twenty forfeiture cases — more than the previous four years combined — have been filed by the Humboldt County District Attorney's Office since March 14, the day the county announced settling two lawsuits over cash seizures that drew media scrutiny.

Of the 20 forfeiture cases filed since last month in Humboldt County District Court, more than four exceeded $10,000 and the majority were filed as a result of Humboldt County Sheriff's Office traffic stops, the county clerk said.

This has prompted one lawyer to consider filing a class action lawsuit. More news of Deputy Dove's pay-to-play "policy" has also surfaced as a result of Nguyen's case.

The class-action lawsuit, yet to be filed as of Wednesday, says Trevor Paine of Wisconsin was stopped for allegedly speeding 84 mph in a 75 mph zone in November.

According to the complaint, Humboldt County Sheriff Sgt. Lee Dove "forcibly searched" the vehicle with a police K-9 because the dog acted as if there were drugs in the car. Dove failed to find drugs, but took $11,000 in cash from a lockbox, the complaint says.

So, there's a clear pattern of abuse, and it looks as though the Sheriff is finally being forced to confront the issue. The bill for deputy misconduct was footed by the citizens, of course, which isn't much of a deterrent for misbehaving officers and those who employ them. And if the number of seizures being filed is any indication, there's a good chance the public will be footing the bill again in the near future.

from the disgusting dept

We recently wrote about a new lawsuit from some Muslim men, suing the US government after they were all placed on the no-fly list for refusing to become informants. Some of the stories were ridiculous, displaying just how aggressive and coercive the FBI has been in trying to force totally innocent people into becoming informants, even when they lack any actual connection to any terrorists or terrorist organizations. But those disgusting stories pale in comparison to a story reported by Nick Baumann at Mother Jones, in which it becomes quite clear that the US government wrecked the lives of multiple family members (mostly US citizens) after one American muslim man refused to become an informant.

You should read the full story of how it all came about, but through a series of events, the FBI came into contact with Naji Mansour, after his (perhaps naive) abundant display of hospitality resulted in two men associated with terror staying in his mother's house in Nairobi. His mother, an American woman from Rhode Island, worked for the US government (as a part of USAID). Eventually, the FBI appears to have realized that Naji had no real connection to the two men, but then they focused on doing everything possible to force him to become an informant. And when he refused, they basically set about to wreck his life, and then his family's lives. After refusing to become an informant, the family suddenly found it difficult to travel:

...the Mansour family headed to the Nairobi airport to fly to Uganda for a visit with Naji's ex-wife and their children. When Naji handed his passport to a security officer, she glanced at her computer screen, stared at him, and asked, "What did you do?" Kenyan security officers detained the family for several hours, releasing them just before their flight took off.

When the family returned five days later, Kenyan airport police questioned Naji again. "The deputy immigration officer said, 'We have nothing wrong with you, but we have a directive not to let you in,'" Naji recalled. Soon, Fogarty and Jones showed up at the airport. The FBI agent reiterated the US government's desire that Naji become an informant. Naji once again declined.

Another time, his mother stopped by the US Embassy in Kenya to add more pages to her passport -- only to have her passport seized. She was told it would only be returned if she met with the FBI agent who had been pushing to turn Naji into an informant. He asked her where Naji had moved to, because they had apparently lost track of him. The very next day, Naji, who had moved to Sudan, and his wife found themselves detained by Sudanese law enforcement:

The next morning, June 30, Naji and Nasreen—who had come to visit her husband in Juba while Sandra was in Nairobi looking after their children—were about to go out for breakfast when they noticed a man peering through the window. Naji opened the door to find two men in suits, sweating in the heat, with guns on their hips. "One of them looked like African James Bond," Naji told me. "And I say, 'Yes, hello?' And they're like, 'Naji Mansour?' and I'm like, 'Yes.' And they just came in." The agents of the South Sudan Security Bureau asked Naji to bring Nasreen out, and then they took the couple's phones and laptops and hustled them into separate unmarked cars.

His wife was detained for over a week -- never charged with anything and then finally released. Naji was held for over a month. In the middle of his detention, a US State Department official suddenly showed up and told him he should meet with the same FBI agent, Mike Jones, who had been trying to recruit him as an informant. When Naji agreed, Jones immediately walked in with another FBI agent. They demanded some "useful info" to help him get released. He tried to come up with any information he could think of, but the agents told him it was not enough, and then said "All right, Naji, good luck... I hope everything works out for you, buddy" and left.

After a month he was released. No explanation, no charges. A few months later, Jones asked to meet again, and Naji said he wanted to talk by phone first, leading to some calls that Naji recorded, in which Jones appears to directly threaten Naji's family while denying having anything to do with his detention.

There's a lot in there (you can read the transcript at the link above), but it becomes clear that they're dragging his mother into this towards the end of the conversations:

Mike Jones [FBI]: As I said, Naji, you know, there's scrutiny on you, and that's not going to go away. There's scrutiny on your mom, she's a contractor with the embassy, that's not going to go away unless we sit down and get down to business. You don't want to come into the embassy, for good– you say for good reason, but meanwhile your mom is employed at the US consulate. So for you to say as an American, "I don't want to go into the embassy to meet with you, and there's a good reason for that." It's just, to us, it should have been done there. We did you a favor by agreeing to do it outside of the embassy, here, in this city. So, you know, Naji, there's really just not more I can say right now.

Naji Mansour: I'm even trying to decipher what you're trying to say right now.

MJ: What I'm trying to say is, you don't want to come into the embassy to do it. Fine. You know, I- we said we'd do it outside of the embassy. This isn't a, meeting hasn't been a priority to you. In fact, you haven't wanted to sit with us, since we've talked, since I've been back in country. Okay. You say you want to get things resolved. I say there's scrutiny on you. There's scrutiny on your mom. She's employed by the consulate, and yet you don't want, or she's employed at the consulate, through a contractor, and you're saying you don't want to come to the embassy, and there's a good reason for that. So I said meet us.

NM: Exactly. My position hasn’t changed. My position hasn't changed. The scrutiny on my mother has nothing to do with anything, unless you you're making a threat. And currently I told you the situation here, [Mike], that in this country I'm kind of like, have you heard of the expression that beggars are not choosers? I'm on contract. I'm on contract, so I'm not giving you any illegitimate excuse. While you're here, I've bent over backwards. And I really don't like your tone. I don't like your tone, [Mike]. I don't like your tone.

MJ: Naji–

NM: You have scrutiny on me for what? What do you have on me? You have nothing on me. I've done nothing. You cannot tell me…

MJ: Then let's sit down and talk about it.

Later in the call, Jones hands the phone over to another FBI agent (who also showed up in the Sudanese prison earlier), Peter Stone (a pseudonym), and Stone is much more direct about the threat:

PS: A series of events is going to be put into motion. And once you put it into motion, and honestly I, I'm out of it. I honestly do not care. I'm going home, you know I got a vacation to plan, I got this [inaudible] other kinda stuff, my life goes on. Yours might change. And it's not going, it might not be necessarily to your liking. But, this is what's going on, but the whole dodging, you're telling, oh, no, this time, that time, all that kind of stuff, frankly I don't believe it. And again, I really don't care. I'm getting ready to pack my bags and go. But when I go, when [Mike] goes, you know, that door closed on ya. A new chapter will open up for ya, and it's going to be a new chapter of your life, but you’re going to remember that this was the day where I could walked through that door, and ya didn't. But that's all I'm going to say, and I'm going to give you back to [Mike], and…

NM: No wait, hold up [Peter], you can't just…

PS: ...and you guys can say nah nah nah nah…

[crosstalk]

NM: That's a blatant threat, and you're going to put in your report that I, how are you? [crosstalk] That I don’t have an excuse to come, when I'm trying to frickin accommodate.

PS: Dude, dude, dude, no let me tell ya, I was not born yesterday. I haven't been doing this job since yesterday, okay? I know when somebody is yanking my chain. Okay? And I'm seeing...

NM: This ain't the states! This ain't the states!

PS: ... a major chain yank. Okay, this is not the first time, believe me. I've dealt with guys who've done that, and all that kind of stuff, and I've just learned, you know I've got a callus built up. I walk away. And then, whatever happens then, honestly, all I know is I can sleep at night knowing that every opportunity was given, you know, the guy decided not. I've helped people out, on the opposite side, people have been helped out tremendously, and that's something that I'm very proud of. People that were in deep shit, who are no longer in shit, and are living a good live, because I was there for them, and they took that door, they took the opportunity and walked through that door, man. And seriously, honestly, it's the same thing that's available to you. But again, you will remember this day, and you're gonna say, "Shit, I shoulda talked to these guys. And I shouldn't have been doing all excuses." If you didn't have any business going on today, or any kind of a things like that, you're gonna find how minuscule and worthless it was compared to this fork in the road, that you're about to take.

NM: What are you talking about? No, why don’t you come out and say it? Why'n't you come out and say what fork in the road are you talking about?

PS: Dude, I honestly don't care. I'm getting out of here. I don't care. Okay? And, you know, when I tell somebody, hey, you know what, if you cross the street without looking you're gonna get run over, that's not a threat. You know, that's advice. [crosstalk] You're about to cross the street without looking both ways...

NM: No.

PS: And I'm telling you, you know what You might get hit by a car—that is not a threat. That is a solid piece of advice. But you don't want to take it. But seriously I'm done, here's [Mike].

It's not too surprising (though no less disgusting) to see what happened next:

Four days later, on November 17, a State Department security officer visited the offices of Management Systems International in Juba. Sandra was fired the same day—less than a week after the company had renewed her contract for another year. She was told her position had been eliminated, but MSI posted the same job a month later. Stefanie Frease, one of Sandra's supervisors, told me the dismissal came at the behest of the US government.

"We all thought she was blackballed," said Inez Andrews, a former foreign-service officer working in the US compound in Juba at the time. "It's awful she hasn't been able to clear this up, that she's being held hostage to a system that was trying to extract information."

Later, his mother was blocked from returning to her own home in Nairobi, and told by an immigration official that it was because of the US government: "If the Americans don't want you here, you ain't coming in." And, then, of course, the US went after other members of Naji's family, including his siblings who are in the US military.

Other members of Naji's family have been targeted, too. In 2011, Naji's sister, Tahani, was detained at the Nairobi airport for three days. "I've heard, 'It's your people'"—that the US is behind her family's troubles with customs officials—"more times than I can count," she told me. "I go to airports now and there's this constant sense of trepidation. Am I gonna make it? Am I gonna get locked up again?"

"As a family we have always been mobile and traveling our whole lives, and as a result completely took it for granted," she told me. "The removal of the liberty to travel was crippling."

One of Naji's brothers says he is frequently questioned about Naji when he crosses an international border. The other, a Marine veteran based in Virginia, was visited by members of the Navy's criminal investigative service, who grilled him about Naji. The FBI even interviewed Naji's uncle and aging grandmother in Rhode Island in 2009.

"They didn't get to me, so they had to target my family," says Naji.

The story is horrific, but chillingly consistent with similar stories that we've heard about the way the FBI operates. Yes, it's important for the FBI to try to find out information about possible terrorists, but they seem to have no concern at all for wrecking the lives of totally innocent people in their pursuit of anyone. These are the kinds of activities that you hear about from authoritarian police states. It's the kind of thing that we were always taught the US doesn't do. Whether or not it was always a lie, it's clearly not the case today.